Voter ID Trial Day 11: Closing Arguments Delayed as Dispute over Data Continued

by Sara Mullen, Associate Director, ACLU of Pennsylvania

The eleventh day of the voter ID trial proved to be an interesting mixture of boredom and drama. After a long trial, everyone involved was looking forward to closing arguments today. Instead, Judge McGinley once again closed the courtroom to everyone but attorneys in the case, leaving the dozen or so journalists and other observers to hang out in the lobby for almost two hours as the two sides continued to tangle over the Department of State (DOS) ID “exception spreadsheet.” The debate is a critical one to the case, as it gets to the issue of whether or not these IDs are actually easily accessible for voters.

The DOS exception spreadsheet is a list produced by the Dept. of State of roughly 600 voters who applied for the DOS ID – the ID the commonwealth claims is easily available to all – at PennDOT but who left without the ID in their possession. The debate between the two sides has been whether those individuals did ultimately receive the ID, how long it took, and why there was a delay in processing them. Opposing counsel fought over discussing the issue in open court, claiming that confidential PennDOT information might be revealed. Petitioners provided abundant assurances that no confidential information would be made public and believe that the real reason for the request for a closed courtroom is to keep the problems with the DOS ID system, which has the potential to disenfranchise voters if the law goes into effect, from being discussed publicly.

The morning began with the cross examination by the commonwealth of Bryan Niederberger from BLDS.  Mr. Niederberger was a rebuttal witness put on the stand yesterday over the objections of the commonwealth. He produced a report analyzing multiple documents produced by opposing counsel during discovery and the trial. He examined the data multiple ways, including versions that took into account the commonwealth’s disputed claims (they claim that 144 individuals on the list of 600+ names were erroneously included on the exception spreadsheet because they have another form of PennDOT ID). Even assuming the commonwealth’s claims are correct, the bottom line is that out of 2,530 people who applied for a DOS ID on or after September 25 (the date the new “streamlined” DOS ID procedure went into effect), at least 56 validly registered voters who went to PennDOT before the November 2012 election did not receive their DOS ID in time for the election. Seven of the 56 never received the ID.   (See page 2 of the report.) If the voter ID law had been in effect in November, these voters would have been disenfranchised.

Lawyers for the two sides retreated to their respective conference rooms to plan next steps. A clerk for the judge attempted to do some shuttle diplomacy, visiting each side to try to reach an agreement about the data. For a while it looked like the commonwealth was going to call rebuttal witnesses to rebut the petitioners’ rebuttal witness.

Journalists and other observers were finally able to enter the courtroom around 11:15 a.m. The commonwealth said it would not call any more witnesses but did file a motion asking the judge to dismiss the case, claiming the petitioners did not have standing. (The motion was not unexpected and is a fairly standard practice.)

In a surprise move, Judge McGinley announced that closing arguments would be tomorrow, August 1, at 10 a.m. rather than this afternoon. The trial has already lasted several days longer than expected.

Later in the afternoon, the judge issued a scheduling order pushing back the date of his ruling on petitioners’ request that the court block enforcement of the voter ID law until a final ruling has been made on the law. Originally due August 9, Judge McGinley will now issue an order on extending the preliminary injunction by August 19, 2013.

Voter ID Trial Day 10: Controversy Continues as Courtroom Closed to Public

by Sara Mullen, Associate Director, ACLU of Pennsylvania

The tenth day of the voter ID trial kicked off with a frequent flier on the witness stand, Jonathan Marks, the Department of State’s Commissioner for the Bureau of Commissions, Elections and Legislations, who has testified on four of the 10 days of trial so far.  Mr. Walczak, legal director for the ACLU of Pennsylvania and an attorney for the petitioners, picked up the cross-examination of Mr. Marks that began last Thursday.

Mr. Marks’s testimony under cross examination summed up many of the arguments petitioners had made throughout the trial. He testified that the nine counties that have no PennDOT driver’s license centers have anywhere from 9 to 32 polling locations each. The point was brought home when Mr. Marks testified that his current polling place is one city block from his home in Perry County – which does not have a single PennDOT driver’s license center. The nearest PennDOT driver’s license center to Mr. Marks is over 34 miles away.

Mr. Marks also admitted that several larger colleges still do not student IDs that are valid for voting because they lack an expiration date and do not provide stickers, including Duquesne in Pittsburgh and Haverford, Villanova, and Widener in the southeastern part of the state.

Mr. Marks also testified that many counties struggle to keep up with the rush of voter registrations at the registration deadline. In fact, he said, Philadelphia specifically has a backlog and is usually still processing them literally days before the election. This fact is particularly important for the DOS ID process, as the Dept. of State holds on to DOS IDs until a voter shows up on the voter rolls and then sends the ID by two or three day UPS to the voter.  (DOS IDs are only available to verified registered voters.)

The second witness of the day was Megan Sweeney, Special Assistant to the Secretary of the Commonwealth. She spearheaded the Department of State’s education efforts about the voter ID law. She testified about the department’s outreach to state agencies, counties, and others organizations about the law. She worked with Bravo group to produce the state’s educational materials and attended 40-50 events. She also did outreach to organizations that worked with nursing homes and similar facilities eligible to print their own voter IDs on regular printer paper.  Under cross examination, Ms. Sweeney admitted no one at the Dept. of State tracked how many nursing homes, personal care homes, or assisted living facilities actually produce IDs that can be used for voting.

After Ms. Sweeney’s testimony, the controversy over the DOS ID exceptions sheet erupted again. The debate stems from a spreadsheet of 615 names on the “exceptions spreadsheet,” which is a document created by the Department of State from the Sharepoint database to track any voter who attempted to get a DOS ID and left PennDOT without one.

It is important to know the DOS ID process in order to understand this controversy. PennDOT will only issue a DOS ID to registered voters. When a person applies for a DOS ID, PennDOT calls the Dept. of State to confirm the voter’s registration. If he or she does not show up on the rolls, PennDOT creates the photo ID anyway, fills out a paper voter registration form, and sends the ID and the voter registration form to the Dept. of State for processing. The voter registration information is sent on to the county, which is responsible for entering voter registrations into the system. The Dept. of State then keeps the DOS ID until the voter’s registration appears in the system, then they send it via regular UPS (not express) to the voter.

In December of 2012, Mr. Marks sent an email to PennDOT asking for information about the names of 194 people whose paper voter registration forms were sent along by PennDOT to the Dept. of State with no DOS ID attached. The PennDOT employee replied that 144 of those individuals had some other form of PennDOT ID. However, due to confidentiality issues, PennDOT would not tell Mr. Marks which of those 194 names were on the list of 144.  These 194 names appear on the DOS exceptions spreadsheet of 615 names. These numbers may sound small, but given that only 3,830 DOS IDs have been issued in total, the way these DOS applications are handled is important evidence for understanding how well the DOS ID process – the card of supposed “liberal access” – is working.

Judge McGinley has asked repeatedly during the trial for the two sides to agree on how to classify what happened with the voters on the exceptions list, some of whom either did not ever receive PennDOT ID or received it long after they had applied. The commonwealth says it has confidentiality concerns about the information on the spreadsheet.

This afternoon, petitioners attempted to finally solve the mysteries around the exceptions spreadsheet by calling Bryan Niederberger from BLDS, who has access to the confidential data, to testify about the raw numbers of voters on the spreadsheet and the resolution of their applications for the DOS ID. However, the commonwealth objected and for the second time this trial, the judge agreed that the court session would be held “in camera,” which means it was closed to everyone except counsel in the case, the witness, and the judge and courtroom staff. Petitioners objected to closing the proceeding to the public but were overruled.

Mr. Niederberger’s cross will continue tomorrow morning, possibly still in camera.  Closing arguments for both sides are also expected tomorrow. 

Voter ID Trial Day 9: The Commonwealth’s Response to Plaintiffs’ Statistician

by Molly Tack-Hooper, Staff Attorney, ACLU of Pennsylvania

Day 9 of the voter ID trial was occupied mostly with a heated debate about the efforts of plaintiffs’ statistical expert (Dr. Siskin, who testified on day 2 of the trial) to quantify the number of Pennsylvania voters who lack adequate photo ID, and whether a more precise count is possible.

Previously, Dr. Siskin had calculated that 511,415 registered voters listed in the official SURE voter database would lack an ID valid for voting under the voter ID law from PennDOT or the Department of State (DOS).  Today, the commonwealth offered the testimony of Dr. William Wecker in a weak attempt to demonstrate that Dr. Siskin’s analysis was so imprecise as to be unreliable.  The theme of Wecker’s critique of Dr. Siskin’s statistical analysis was that Dr. Siskin could and should have accounted for additional circumstances that might reduce the total number of disenfranchised voters.  

On cross examination, plaintiffs’ counsel (Mike Rubin, of Arnold & Porter) systematically dismantled each of Wecker’s suggested methods of generating a more “reliable” count of voters who lack ID.

One of Wecker’s more significant criticisms of Dr. Siskin was that Siskin did not measure and account for voters who lack a state-issued ID but do have a student ID that meets the voter ID requirements.  Wecker argued that such a measurement would have significantly reduced Siskin’s tally of voters without ID, and he attempted to demonstrate that such a calculation is possible by using geo-coded data to determine the number of voters aged 18-28 who lived within a 1-mile radius of each of Pennsylvania’s colleges and universities.  Using this method, Wecker concluded that there were 48,046 people who likely had access to a student ID that could be used for voting and should thus have been excluded from Siskin’s list.

As Rubin walked Wecker through this calculation, nearly every assumption underlying Wecker’s analysis fell apart, revealing that Wecker’s calculation dramatically overstated the number of registered voters who could rely on a student ID to vote.

First, Wecker admitted that he had arrived at the conclusion that there were 48,000 voters with student ID by counting every Pennsylvania college or university that was eligible to issue student IDs that could be used to vote, including the schools that had elected not to issue such IDs.  Wecker conceded that he had not attempted to determine which schools on his list actually issued valid voter IDs.  Although defendants possessed this information and produced it in discovery, they did not provide it to Wecker, and he did not ask them for it.

Next, Rubin demonstrated to the Court that Wecker’s method of determining how many registered PA voters attended each school by drawing 1-mile-radius circles around the school bordered on the absurd when applied to non-rural schools.  Rubin showed the Court a map illustrating Wecker’s “catchment areas” for the Philadelphia schools that issue valid student voting IDs, which covered huge swaths of Philadelphia’s Center City and several other neighborhoods.  When this map was expanded to include the schools that Wecker had counted that were merely eligible to start issuing such IDs, the catchment areas swept in breathtaking expanses of Philadelphia’s densely populated urban centers.  Rubin performed the same exercise with a map of Pittsburgh that showed only the schools there that Wecker had counted that were not issuing valid student IDs, which virtually blanketed all of Pittsburgh and accounted for thousands of people whom Wecker incorrectly assumed had access to appropriate student ID.

Despite Wecker’s emphatic refrain that Dr. Siskin’s analysis was so limited as to be unreliable, Wecker conceded, over and over, that there were inherent limitations on the data available. Wecker stated at various times that it was a “fool’s errand” to try to come up with an actual count of voters without ID by comparing the SURE and PennDOT and DOS databases, and that he didn’t expect it could be done “perfectly” or that there was a “perfect” method or number available.  “It’s just as hard for me as it is for [Dr. Siskin],” Wecker conceded, describing his own calculations as a “rough cut” and “not terribly refined.”  Confronted repeatedly with the astounding shortcomings in his own methodology, Wecker ultimately suggested that his flawed calculations were nonetheless damning because they indicated there could be “some” people on Siskin’s list who should be excluded, and protested that he didn’t have “time, or a chance, or a need” to figure out whether there was a more reliable statistical method available to Dr. Siskin.  Wecker was merely there to point out that there were possible limitations in Siskin’s process — a fact Siskin already pointed out himself.

Trial resumes on Tuesday, July 30, at 9:15 a.m. with testimony from Jonathan Marks, Commissioner of the Bureau of Commissions, Elections, and Legislation with the Pennsylvania Department of State.

Voter ID Trial Day 8: The Commonwealth’s Case

By Sara Mullen, Associate Director, ACLU of Pennsylvania

Today the commonwealth called its first two witnesses, although petitioners declined to rest their case officially until an ongoing dispute over a piece of evidence is resolved. The dispute escalated this afternoon, at one point requiring everyone except Judge Bernard McGinley and lawyers for the two sides to clear the courtroom while they unsuccessfully attempted to settle the matter. 

In what proved to be a somewhat baffling choice, the commonwealth opened its case with Kelly O’Donnell, Director of Operations and Management at the Department of Aging. Ms. O’Donnell testified about the department’s efforts to educate “older Pennsylvanians,” defined as individuals 60 and older, about the voter ID law. 

During her cross examination, Marian Schneider, an Advancement Project attorney representing the petitioners, noted that the primary education document created by Ms. O’Donnell and distributed to voters states that one can get an ID at “a PennDOT driver’s license center or photo center.” Despite being a key figure in the educational efforts of her agency, Ms. O’Donnell was unaware until she was told on the stand today that one cannot get the PennDOT or Department of State (DOS) ID for voting at a photo center. (The confusion is not unusual - earlier in the trial two elderly voters testified about mistakenly going to a photo center instead of a driver’s license center to obtain an ID.) 

Ms. Schneider also produced an email from Ms. O’Donnell to a manager of a senior center in which Ms. O’Donnell erroneously stated that IDs can be obtained at a photo ID center and that PennDOT could schedule an appointment in advance for large groups of people to come in to get ID. PennDOT does not have such a program.

Ms. O’Donnell also admitted that the primary document the department used to educate older Pennsylvanians about the voter ID law was never updated to include information about the DOS ID. 

The commonwealth’s other witness of the day was Kurt Myers, Deputy Secretary for Safety Administration, whose duties include overseeing driver and vehicle services. He testified that PennDOT has issued 12,981 free-for-voting non-driver’s photo IDs and an additional 3,830 DOS IDs since the law went into effect (the DOS ID wasn’t available until August 27, 2012). He noted that every photo of an individual taken for a PennDOT ID stays in their system indefinitely and that on rare occasions, such as someone being away on military duty, PennDOT could print a new valid ID using a photo on file.

Throughout his testimony Mr. Myers stressed that obtaining an ID was a “shared responsibility” between PennDOT and its customers. People seeking ID should know where to go to get the ID and what specific “PennDOT product” they need when they arrive. “There’s an effort in life,” he said. 

When asked, Mr. Myers said he did not “agree with the premise that people don’t know the difference between a driver’s license center and a photo center.” He refused to concede that it was understandable that voters might be confused about the two kinds of PennDOT centers - despite having been in the courtroom when Ms. O’Donnell, a high ranking official in state government, admitted on the stand that she did not know the difference between the two.

Mr. Myers stated that under current protocol, PennDOT employees do not ask customers if they need a free ID for voting but instead ask them for what purpose they want an ID. If customers do not mention voting, they are not told of the option to obtain a free ID.  He seemingly did not understand the difference between a PennDOT employee proactively asking an individual if he or she needs the ID for voting and the more open-ended question of “what do you need an ID for?” After prolonged questioning on the issue, Myers said if it would make things easier, he will “issue an edict tomorrow” requiring PennDOT employees to ask customers if they need an ID for voting. 

Mr. Meyer’s testimony was briefly interrupted while the two sides attempted to resolve a long-standing dispute over a spreadsheet produced by the Department of State that lists roughly 500 individuals who were initially rejected for the DOS ID.  At issue are how many of these people were properly registered voters who should not have been rejected and which ones on the list ultimately received an ID. At one point, in an attempt to resolve the matter while protecting confidential voter information, Judge McGinley cleared the courtroom to discuss the matter with counsel from both sides. The dispute remains unresolved, as petitioners requested time to review the latest information on these voters provided under seal by the commonwealth.

Court resumes tomorrow at 9 a.m. and is tentatively scheduled to conclude for the day at 3 p.m. Witnesses include Jonathan Marks and Dr. William Wecker, an expert witness who will be critiquing the report submitted by the petitioners' expert witness, Dr. Bernard Siskin.

Voter ID Trial Day 7: Real Voters, Real Barriers

by Sara Mullen, Associate Director, ACLU of Pennsylvania

Attorneys for the plaintiffs concluded their case today with video depositions of three elderly long-time voters, two of whom do not have valid ID and face significant challenges to getting to PennDOT to obtain one, and a third who was forced to make three separate trips (each 2 hours round-trip) before finally securing a Dept. of State (DOS) for-voting-only ID. The videos paint a clear picture of the hurdles many senior voters face when trying to obtain an ID.

The first video was of Patricia Norton, a great-grandmother of five who lives in Berks County. Because she has pins and rods in her back, she uses a wheelchair or a walker to get around and is in pain most of the time. She spends most of her time lying down on the couch or in bed, as sitting is excruciating for her. She rarely leaves home except for doctor’s appointments, although she does vote in person every election at her polling place on the corner near her house.

A regular voter who believes “voting should be important to everyone” because “we all have a stake in what’s going on,” Ms. Norton attempted to get a PennDOT ID last fall after learning about the voter ID law.  Friends took her to PennDOT driver’s license center in Shillington – a 45 minute trip by car. After the painful ride, Ms. Norton was informed by the PennDOT employee on duty (whom Ms. Norton described as “not a happy helper”) that she would have to pay $13.50, although she correctly told the clerk that the ID was supposed to be free. Ms. Norton was willing to pay to get the ID anyway, but to her dismay, PennDOT does not take cash – only checks or money orders.  Discouraged and in pain, Ms. Norton returned home without the ID.  

Ms. Norton criticized the voter ID educational ads on TV, saying they just “tell me that I need to get an ID to vote,” but they don’t “tell me how to do it or where to go.” (Ms. Norton’s video testimony is available online.)

The second video testimony came from Nadine Marsh, one of the original plaintiffs in the lawsuit. Ms. Marsh, an elderly resident of Hanover Township in Beaver County who has never had a driver’s license, described how her granddaughter repeatedly tried to contact the Dept. of State to make sure Ms. Marsh had the correct documents for obtaining an ID. After multiple attempts, the DOS finally responded.  Ms. Marsh and her daughter took the hour-long trip, only to be told that while the PennDOT driver’s license center was indeed open, it does not produce photo IDs on Mondays. 

The pair made a second attempt, but the PennDOT employees on duty had never heard of the Dept. of State (DOS) ID for voting and said they would have to contact Harrisburg and would be in touch. After spending an hour and a half at PennDOT plus two hours in the car, Ms. Marsh once again returned home empty-handed.  On October 2, her third try, she finally succeeded in obtaining her DOS for-voting-only ID. (Ms. Marsh’s video testimony is available online.)

The final voter video featured Catherine Howell, a great-grandmother and resident of Morrisville (Bucks County) who cast her first vote for Harry Truman. She was diagnosed with Parkinson’s disease four years ago and now mostly gets around using a scooter or a wheelchair. Her driver’s license expired last January. Ms. Howell’s polling place is only two blocks away at the local library. Like several other witnesses, Ms. Howell said the poll workers did not say anything about the voter ID law on Election Day. She had heard about the law, but didn’t know where to go to obtain an ID. She is unable to take the public bus to Bensalem and her children, who work full time, are often unable to drive her places. (Ms. Howell's video testimony is available online.)

Other witnesses today included Laverne Collins, director of the Bureau of Public Transportation, who testified about the Share Ride program, and Susan Carty, the president of the state League of Women Voters, one of the organizational plaintiffs in the case. Ms. Carty testified about “tremendous amount of confusion” about the voter ID law and the calls the League received about it.

The judge announced that there will be no court on Friday, July 26, or Monday, July 29.

The commonwealth begins putting on its case tomorrow. Their first witnesses are Kelly O’Donnell of the Department of Aging and Kurt Myers from PennDOT.

Voter ID Trial Day 6: Governor and Legislature Rejected Dept. of State and Dept. of Aging’s Recommendations to Make Voter ID Law Less Burdensome

By Mary Kate Kalinich, Legal Intern, ACLU of Pennsylvania

The first witness at the voter ID trial today was David Proctor, a 67-year-old registered voter and Harrisburg resident.  Mr. Proctor testified about the difficulty he faces trying to comply with Pennsylvania’s new voter ID law. His hip, knee and back problems make it difficult for him to walk the couple miles to the nearest PennDOT location. In addition, there is no easily accessible public transit, and his closest family member works six days a week and takes care of her four children. Although Mr. Proctor does not have a valid ID under the new voter ID law, he does have a Department of Welfare ID, a merchant marine card, a swim club ID, and a bus pass with photo identification. Mr. Proctor testified that he has used these IDs to open a bank account in the past.

The second witness of the day was Rebecca Oyler, former policy director for the Department of State. Ms. Oyler testified that she reviewed aspects of the bill that would become the new voter ID law and acted as a liaison to the governor’s office. She admitted that on numerous occasions, the Department of State and the Department of Aging recommended changes to make the proposed law less burdensome that were rejected, including loosening the absentee voting restriction to accommodate those who are able to vote in person but can’t get to a PennDOT driver’s license center.   

The plaintiffs closed the day with a short clip of Secretary of State Carol Aichele’s testimony in a legislative hearing earlier this year. Secretary Aichele was asked how many individuals currently do not have valid ID. Although she could not give a concrete number for the state of Pennsylvania, she stated that studies show that 96.7% of voters in Philadelphia have acceptable ID.

Voter ID Trial Day 5: A Harsh Critique of the Commonwealth’s Voter ID Communication Campaign

By Amy Bowles, legal intern, ACLU of Pennsylvania

The first week of the constitutional challenge to Pennsylvania’s Voter ID law was rounded out by testimony from Professor Diana Mutz, Ph.D., on the ineffectiveness of the commonwealth’s efforts to educate the public about the voter ID law. Professor Mutz is the Samuel A. Stouffer Professor of Communication and Political Science at the University of Pennsylvania’s Annenberg School for Communication and an expert in political communication. Professor Mutz was hired by plaintiffs to review the commonwealth’s voter ID communication campaign.

Professor Mutz testified broadly on the campaign’s flawed design. She noted the commonwealth’s failure to adhere to standard best practices, developed by organizations like the National Research Council and widely used in communication campaigns. Notably, the commonwealth failed to pre-test their campaign materials, despite pre-testing being as inexpensive and easy as polling 15 people in a focus group to determine whether they understand and retain the desire message. The commonwealth also did not use formative evaluation, where a campaign is begun in a small area and fine-tuned based on the initial effectiveness before expanding. Professor Mutz testified that the extent to which an organization follows best practices, not the dollars expended on a campaign, is a predictor of success. She recounted examples of past campaigns, ranging from anti-drug to anti-pollution messages, where failure to adhere to best practices caused the campaign to be ineffective or even counter-productive.  

Professor Mutz also testified as to specific media produced by the commonwealth as part of the campaign both before the injunction and after. Each piece (TV spot, radio ad, magazine ad, online banner, and direct mail letter, insert, and postcard) raised its own unique concerns, but two recurring themes about the commonwealth’s campaign emerged. First, the presentation and language, “show it,” used by the campaign was vague and misleading. Professor Mutz testified that “show it” was a double entendre that could mean “show your commitment by voting” or “show ID” at the polls. Additionally, when “show it” was used in materials, it often accompanied a photo of a driver’s license, which concerned Professor Mutz because it could give the impression that a only a drivers license (not the variety of IDs on the approved list) was acceptable for voting purposes. In that sense, the campaign could be counterproductive.

Because the commonwealth failed to institute any effectiveness measures (contrary to best practice), it is unclear whether the population understood “show it” as the commonwealth intended.  In fact, the commonwealth explicitly told their vendor, Red House, that they did not want to incorporate a standard effectiveness measure. Rather, the commonwealth used “impressions,” which are based on information circulation figures (like how many people receive a magazine). Professor Mutz testified that impressions lead to high estimates and are widely regarded not to be a legitimate effectiveness measure.

Second, and perhaps more egregious, was the fact that nearly every piece of information reviewed by Professor Mutz during testimony failed to include any substantive information about how to obtain ID if a voter finds herself without one. Professor Mutz reiterated prior testimony from the state that the commonwealth intentionally did not include information about how to obtain the for-voting-only Department of State (DOS) ID out of fear that it might confuse the public. She testified that follow through is critical when an organization wants a viewer to do something in response to the message, like go to a website or call a number, and follow through requires providing a reason to take additional steps. Yet, the commonwealth’s materials provided little to no indication of why member of the public would need to visit the website or call to “learn more,” as their materials suggest.

Even if a voter did follow in an attempt to get more information, Professor Mutz found both the hotline and website problematic. Fifteen months after the voter ID law went into effect, the Votes PA (the voter hotline) operator could not answer her question, and navigating the website VotesPA.com proved to be confusing and difficult. Of particular importance, Professor Mutz testified that the system fails to inform voters that DOS ID must be obtained when both the driver’s license center and the photo center are open (otherwise, voters would have to make an additional trip).

Though the commonwealth has committed $2.1 million to a future campaign, Professor Mutz expressed concern about the commonwealth’s plans to use the same campaign materials. She testified that materials issued after the injunction were problematic because the commonwealth largely recycled pre-injunction material with slightly altered language indicating that ID would be “asked but not required.” Recycling the same ineffective materials a third time will surely raise the same problems, said  Professor Mutz. The third time will not be the charm.   

Ms.Alicia Hickok, counsel for the commonwealth, attempted to undermine Professor Mutz’s testimony through cross-examination. Ms. Hickok pointed to the “soft rollout” (where voters were asked for ID at the polls and those who didn’t provide it were told they would need it in the future),  the over one million hits received by the VotesPA website, and the programs initiated in senior centers and libraries as evidence that the commonwealth created an effective campaign. However, Professor Mutz reiterated that though those measures had potential for educating voters in select cases, the commonwealth has issued no evidence pointing to their implementation or broad effectiveness.

The trial will resume at 1:00 on Monday, July 22.

Voter ID, Day 4, July 18, 2013

by Paul Anderson, legislative intern, ACLU of Pennsylvania

This morning began where the trial left off yesterday. Jonathan Marks, the Department of State’s Commissioner for the Bureau of Commissions, Elections and Legislation, continued his testimony about the Department of State (DOS) ID, the special form of ID designed as an alternative for those registered voters who could not obtain a secure PennDOT ID. Central to Marks’s testimony was the question of whether the issuance and delivery of DOS IDs satisfied the voter ID law’s requirement that IDs be liberally accessible to eligible voters.

Much of the morning was spent pouring over petitioners’ Exhibit 2071, the DOS ID Exceptions Spreadsheet that cataloged each DOS ID applicant who was flagged and initially denied a DOS ID from PennDOT. Reasons for denial included, but were not limited to, the applicant not being registered to vote, concerns about duplicate registration, and inconsistencies in identifying information. This information was used to determine how many duly registered voters were unable to get a valid ID before last year’s November 6 general election. Through Mr. Marks’s testimony, and a bit of lawyerly math, it was determined that 2,255 DOS IDs had been issued since September 27, 2012. Of persons duly registered to vote on or before October 9, 2012 (the deadline to register for the 2012 general election), 42 did not have IDs delivered by November 6, and 82 of those individuals have still not been sent an ID as of early July 2013. This indicates that 5.49% of persons who applied for a DOS ID were duly registered to vote in the 2012 election but did not received an ID before Election Day.  That's a pretty devastating error rate when it means disenfranchising voters. 

Members of that group had some compelling back stories. There was a lot of focus, from both petitioners and respondent, on a 94-year-old woman, registered since 1944, who went to PennDOT in October 2012 did not receive a valid ID until March 2013. The commonwealth focused on a name discrepancy to explain the delay. The voter in question had registered as Mrs. [husband's first name] [last name], a practice that seems wholly anachronistic today but was not uncommon during World War II. The commonwealth seemed unperturbed that a voter who has cast a ballot since 1944 would have been, absent the temporary injunction, unable to vote in the 2012 election simply because of the name she registered with 69 years ago. 

The commonwealth did not aggressively dispute the conclusion that 124 voters would have been disenfranchised by the voter ID law They suggested in cross examination that those people actually got IDs through another process, but they did not specify how or present any specific information.  Instead, respondent’s counsel returned Marks to his Wednesday testimony in an attempt to show that the DOS measures, in coordination with the efforts of the county boards of elections, would help ensure that all eligible voters who apply for an ID would have it by Election Day. While Mr. Marks testified that his department would do everything in its power to ensure that it can get IDs to as many eligible voters as possible, he was unwilling to speculate whether or not the Department of State would have had the resources to ensure, absent the injunction, no eligible voters were disenfranchised in 2012.

 Marks concluded that he remained confident in the integrity of Pennsylvania’s elections even after the voter ID law’s enactment, despite agreeing with the conclusion that petitioners had evidence of 124 eligible voters who have been disenfranchised if the law had been in effect.

After lunch, Andrew Rogoff,  a lawyer from Pepper Hamilton LLP, took the stand to testify to the difficulty his late father-in-law, Herbert Ginensky, had in obtaining a valid photo ID in the months before his recent passing. Mr. Ginensky, a life-long New Yorker and WWII veteran, moved with his wife to Pennsylvania because of their failing health. Mr. Ginensky had ceased driving so when his driver’s license was due to expire, he chose to forgo renewal and apply for a DOS ID through PennDOT. What should have been a relatively smooth application process turned into a bureaucratic nightmare. Mr. Rogoff helped his father-in-law fill out the necessary paperwork in November 2012. After failing to get a response for several months, he called PennDOT to find out what the delay was. PennDOT told him that Mr. Ginensky could come in to a PennDOT location to receive his ID, but given Mr. Ginensky’s health, this was not ideal. In late February, a letter from PennDOT finally arrived, but it lacked the DOS ID card, informed Mr. Ginensky his application for driver’s license renewal (which he did not apply for) had been postponed, and most bizarrely, informed him that he had an outstanding balance of $0.00 that he owed PennDOT. After resending a notarized form (at the cost of $5.00) and “paying off” his $0.00 balance, Mr. Ginensky finally received is DOS ID card on May 24—three days after the May 21 election.

On cross-examination, respondent counsel attempted to raise some doubts about Mr. Rogoff’s factual claims (was he sure the ID wasn’t in the envelope when it left PennDOT? Haven’t you ever been tied up in red tape, Mr. Rogoff?), but he was a sympathetic witness.

Shannon Royer, the Department of State’s Deputy Secretary for External Affairs and Elections, was the final witness. He testified out-of-order on behalf of the commonwealth. After relaying the history of electronic voter registration databases in Pennsylvania, Mr. Royer explained how the department orchestrated a statewide education campaign that “touch[ed] all corners of the state.” Targeting minority groups, non-English speakers, seniors, college students and the financially disadvantaged, the education campaign deployed advertisements in a cornucopia of media platforms:  television, newspapers and magazines, radio, buses, mail flyers, billboards, online banner ads, and social media, to name just a few. There were pre- and post-injunction advertisements. The pre-injunction ads used the phrase, “If you want to vote—show it!” while the post-injunction ads altered it to, “If you have it—show it!” In both instances “it,” of course, refers to a valid photo ID.

Mr. Royer was visibly proud of the education campaign, and his testimony revealed he was of the belief that, if anything, the department overestimated the number of people it would need to reach with the idea. He also cited the “soft roll-outs” (the term used for the policy in place at the 2012 general and 2012 and 2013 primary elections where voters were asked, but not required, to produce a valid photo ID). While the evidence indicated that the department did spend a lot of money ($5 million so far, with another $2.65 million pledged) on getting the word out about the requirements of the voter ID law, he was not able to provide evidence of how well the campaign actually worked in getting valid photo IDs into the hands of those who need them.

Mr. Royer’s testimony clearly demonstrated that the department, despite spending a fortune on the education campaign, committed absolutely no funds to analyzing the success of the campaign. He could give neither a general statistic regarding how many eligible voters still lack a valid ID nor more specific stats about how effective the campaign was for the targeted demographics. There was also a brief disagreement regarding whom the law actually affects. Mr. Royer contended that the voter ID law’s indigence exception allows anyone to circumvent the law by asserting that he or she is poor and filling out a provisional ballot. (Of course, since IDs are free, no one can legitimately sign an affidavit saying they can't afford to get a free ID, so the exception is useless.)  Petitioners’ counsel questioned that interpretation, arguing that the law required both a claim of indigence and an assertion that the person could not afford to get an ID. There were also questions raised about how effectively the education campaign publicized the DOS ID. Indeed, not a single ad even mentioned the DOS ID. In a key admission, Royer stated that they intentionally didn't mention the DOS ID because they didn't want to confuse voters with driver's licenses who might think they needed additional ID to vote. The overriding concern was to ensure that voters with ID bring the ID - no to helping voters without ID get one.

Ultimately, the department will likely claim that the education campaign was an operational success, but it lacked the evidence to conclude the campaign did what it was supposed to do—get more eligible voters valid IDs. Without any sort of study into the campaign’s effectiveness, the department (and, by extension, the Commonwealth Court) remains in the dark as to whether the campaign significantly increased the number of people who have valid IDs to vote.

After over three hours on the stand and another late day in court that ended at 5:00 p.m., Mr. Royer was finally permitted to step down, and the court recessed. As Mr. Royer was called out of order, petitioners will resume their case tomorrow. Diana C. Mutz, Ph.D., a professor from the University of Pennsylvania, will critique the Department of State’s education campaign, including its failure to meet the standards of an effective information campaign. 

It is also looking likely that the trial will extend to the week of July 29.

Voter ID Trial Day 3, July 17, 2013

by Thad Eagles, legal intern, ACLU of Pennsylvania

Wednesday marked the third day of witness testimony in the challenge to the state's voter ID law brought by the ACLU of Pennsylvania, the Public Interest Law Center of Philadelphia, Advancement Project, and the law firm of Arnold & Porter. It also marked a shift from statistical analysis to the beginning of testimony regarding the accessibility of the identification required for voting.

The first witness was David A. Marker, PhD, an expert in public policy surveys and statistics who works for Westat, a Maryland business that does large-scale statistical studies. (Dr. Marker's report is available here.) Dr. Marker reviewed the methodology of a study conducted last year by a Dr. Barreto to determine the number of voters in Pennsylvania who do not have identification that would allow them to vote, and testified that it was conducted in accordance with all professional standards, and that he had full confidence in the results. Dr. Barreto concluded that the number of eligible voters in Pennsylvania without acceptable ID likely numbered over one million, and is definitely in the hundreds of thousands. (Dr. Barreto's original report is available here.)

Dr. Marker testified that the study reliably showed that 1.2-1.5 million eligible voters were without proper identification and 900,000-1.2 million registered voters were without proper identification, either because they lacked ID completely or the name on the ID did not match that of the name they registered under. He also addressed several issues with the study that Judge Simpson had identified last year, testifying that even if the alleged flaws in the study were factored in, there would still be hundreds of thousands of Pennsylvanian voters without the required ID. For example, Judge Simpson criticized the fact that, because the study was conducted over 12 consecutive days in the summer, there was the possibility that a disproportionate number of non-responses were from people on vacation, and those who go on vacation for 12 straight days are likely to have higher incomes and thus more likely to have identification. Dr. Marker testified that, even assuming that everyone who was unreachable was on vacation, and that the rate of those lacking IDs was half that of the average, the estimate of eligible Pennsylvanians who do not have proper ID would only be reduced from 12.8% to 7.9%, which still leaves hundreds of thousands of disenfranchised people. 

Needless to say, it is absurd to think that all, or even a substantial percentage, of the people who could not be reached were unavailable because they were on vacation. Similarly, Dr. Marker testified that even if we assume that no one whose name on their ID differs from their name in the voter registration is denied access to the polls for that reason, there would still be well over 500,000 voters who do not have the required ID.  

Attorneys for the commonwealth identified other areas of concern during their cross-examination, trying to poke holes in the study’s conclusions. For example, defendant’s counsel Alicia Hickock brought up the possibility that asking people if they had “official” PennDOT identification might lead them to believe that the question referred to something more than their driver’s license or non-driving identification card, or that those who were on vacation were more likely to have a passport, which the study did not take into account. Ms. Hickock also pointed out that the study did not take into consideration the number of people who did not have identification but permanently used absentee ballots and would not be disenfranchised. However, on re-direct, Mr. Walczak demonstrated that only 15-18,000 voters fall into that category, which is negligible as compared to the hundreds of thousands of registered voters who do not have ID. Again, even if you assign far more weight than is reasonable to the factors objected to by the state and by Judge Simpson, the fact remains that hundreds of thousands of eligible and registered voters in Pennsylvania are disenfranchised by the voter ID law.

In one strange line of questioning, Ms. Hickock asked Dr. Marker if, given the fact that he testified that civically engaged, educated individuals were more likely to respond to surveys, there was a possibility that those who felt strongly about the voter ID law might have said they didn’t have ID when they did have it in order to express their feelings about the law. Dr. Marker responded that if the survey did reach a disproportionately educated, engaged part of the population, it would instead mean that those without IDs were under-represented in the survey – not over-represented.

The second witness of the day was Adam Bruckner, the founder of Philly Restart, the only nonprofit in Philadelphia dedicated to helping homeless persons pay to get IDs required for things such as employment and voting. His organization has unfortunately been forced to require a referral letter before providing assistance because the demand for their services so far exceeds what they can provide. Mr. Bruckner testified that he informed everyone who came to his agency that PennDOT ID was now free for those who needed it to vote. However, after many of those he sent to PennDOT to get this ID were turned away, he simply stopped making the announcement. Mr. Bruckner passionately testified about the great need for IDs in the homeless community, saying that the men and women he serves “care about voting because they care about life… Voting means a lot to them because it’s sometimes the only voice they have.”

The third and final witness of the day was Jonathan Marks, Commissioner of the Bureau of Commissions, Elections and Legislation with the Pennsylvania Department of State, who testified that he had complete confidence in the integrity of the elections held in Pennsylvania before the passage of the voter ID law, when voters only had to show identification the first time they voted in a particular precinct and sign a poll book when they voted, which poll workers then compared to the signature on file. Mr. Marks then testified about the details of the voter ID law, which requires that voters present one of a short list of IDs that does not include many common forms of identification, such as a IDs provided by the Department of Veteran’s Affairs. 

The most common and accessible IDs on the list are from PennDOT, and getting one requires, among other things, going to a PennDOT office. Nine counties do not have an office and 22 have offices that are only open one or two days a week. Mr. Marks also testified  that there have been fewer than 100 free non-driver’s photo IDs issued per month since November and less than 50 DOS IDs issued per month in that time, for a total of only 16,811 of these types of voting IDs issued since March of 2012, helping only a tiny fraction of the hundreds of thousands of Pennsylvanians without the necessary ID.

Mr. Marks began to testify about the surprisingly complex requirements of the new DOS ID, but ran out of time. His testimony will resume tomorrow morning at 9:30 am. Other witnesses set to testify tomorrow include Diana Mutz, a communications expert who will critique the state's education campaign, and Shannon Royer, Deputy Secretary for External Affairs and Elections.